Redistricting

CSG Midwest
Voters in two Midwestern states may soon have the chance to take the power of drawing legislative districts out of the hands of their legislatures. In South Dakota, a proposed constitutional amendment has already been certified and will appear on the fall ballot. It calls for a nine-member, independent commission to handle the state’s redistricting process. No commissioners could have served in state political office or a political party’s office within the last three years. In addition, no more than three people from the same political party could be named to the commission. 

In Harris v. Arizona Independent Redistricting Commission the Supreme Court confirms that state and local governments don’t have to apportion legislative districts perfectly, but they do need a good reason for failing to doing so. But we knew that before.  

The Court held unanimously that Arizona’s redistricting plan, which had a total population deviation among districts of 8.8 percent, wasn’t unconstitutional. Those attacking the plan failed to show it is more probable than not that the deviation reflects illegitimate reapportionment considerations.

Perhaps the Supreme Court’s midterm has come and gone. The Court will only hear argument in 10 more cases and the term will end June 30. But the Court has issued decisions in less than half of the cases of the term so far. So now might be just the time to take stock of the Supreme Court’s term as it relates to the states.

The Court has already decided two big cases and has four more left to go. Only one of the six big cases (involving the Affordable Care Act birth control mandate) will have no direct impact on the states.

In what has been described as the most important “one-person, one-vote” case since the Supreme Court adopted the principle over 50 years ago, the Court held that states may apportion state legislative districts based on total population. Local governments may do the same.  

The Court’s opinion in Evenwel v. Abbott is unanimous. All 50 states currently use total population to design state legislative districts; only seven adjust the census numbers “in any meaningful way.”   

In Reynold v. Sims (1964) the Court established the principle of “one-person, one-vote” requiring state legislative districts to be apportioned equally so that votes would have equal weight. The question in this case is what population is relevant—total population or voter-eligible population. Total population includes numerous people who cannot vote—notably non-citizens and children.

Following the 2010 census Texas redrew its State Senate districts using total-population. The maximum total-population deviation between districts was about 8 percent (up to 10 percent is presumed constitutional); the maximum eligible-voters deviation between districts exceeded 40 percent.

Justice Ginsburg’s majority opinion concluding Texas may redistrict using total population is “based on constitutional history, this Court’s decisions, and longstanding practice.”

So the million dollar question (other than who will fill Justice Scalia’s seat) is what will happen to undecided Supreme Court cases heard or to be heard this term.

The short answer is it depends and in all instances isn’t entirely clear.

If a case isn’t 4-4 it will be decided as usual with only eight Justices.

If a case is going to be decided 4-4 the Court has two choices:  wait for the ninth Justice to join the Court and rehear the case or issue a non-precedential 4-4 decision that affirms the lower court decision.

Pages